Author: Gopalakrishnan R R, Sastra Deemed University
This article analyses the concept of medical negligence, puts into words how acutely patient rights is considered, and suggests ways to strike a balance between due care and patient safety in order to neglect “negligence”. It also views medical negligence from the lens of COVID-19, and examines whether giving doctors immunity from negligence works best for the larger society. “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”
WHAT IS NEGLIGENCE?
As of today, the jurisprudential concept of negligence does not have any unambiguous definition. In common parlance, however, negligence is said to be the failure to take proper care of something or someone. The Supreme Court of India observed that “negligence is the breach of duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.”From the above observation, we can infer that there is a legal duty to exercise due care while performing or omitting an act or providing a professional service, or any service for that matter; and the breach of such legal duty may lead to liability.
ESSENTIALS OF NEGLIGENCE
In an action for negligence, the burden of proof always rests on the party alleging negligent conduct of the other. Also, there has to be sufficient evidence that the party has not taken reasonable care. The three essentials that need to be proven in an action for negligence are:
- A duty of care was owed by the defendant to the plaintiff.
- There was a breach of such duty.
- As a result of the said breach of duty, the plaintiff suffered damages.
It is pertinent to note here that, the duty of care owed to a party depends on reasonable foreseeability of the injury. “Duty to take care is the duty to avoid doing or omitting to do anything, the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.”
If an act or abstention from an act results in an injury, and the injury is not foreseeable, there exists no liability. To prove negligence, establishing that the injury was foreseeable is not enough. Further, a reasonable likelihood of the injury must also be ascertained, because “foreseeability does not include any idea of likelihood at all.”
THE PRINCIPLE OF RES IPSA LOQUITUR
Res ipsa loquitur means the thing speaks for itself. Generally,in cases of negligence, “the party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If, at the end, he leaves the case in even scales, and does not satisfy the court that it was occasioned by the negligence or default of the other party, he cannot succeed.”
In certain cases, direct evidence of negligence is not necessary because the same may be inferred from the circumstances. The person claiming damages need not prove liability of the defendant. The resulting injury of an act or omission makes it quiet blunt that the negligence of a certain person was the cause for the same. The doctrine of res ipsa loquitur comes into play in such cases. The maxim becomes applicable only when there is no other inference possible from the given facts of a case. Also, the rule merely shifts the burden of proof into the defendant’s court. Instead of the plaintiff proving negligence on the part of the defendant, the defendant is required to prove his innocence. The principle of res ipsa loquitur has been applicable in most of the medical negligence claims. If a medical professional breaches his duty of care, it is usually quite inferable from the circumstances because of the seriousness of his act or omission. It will only be apt to take a dive into what medical negligence is, how and why it happens, at this juncture.
Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. It is when the professional fails to deliver this degree of care and caution that it amounts to professional negligence. To put it in medical law perspective, when doctors or medical practitioners act carelessly, it results in medical negligence. Medical negligence claims have almost always been centered on the latter two essentials of a negligent act; that there was a breach of duty, and that the breach resulted in a reasonably foreseeable and avoidable injury.
Negligence in the medical arena occurs mainly in three ways; misdiagnosis, errors in prescribing medicine and treatment, and use of inappropriate drugs. Why do these errors occur when most of the doctors are from high end universities with world-class facilities? Corruption. As is the case in almost every other sphere of life, corruption is ‘the’ game changer behind the increasing incompetency of medical practitioners, and ultimately in medical negligence. Unbridled corruption exists at every turn in the healthcare industry across the world; from medical college admissions to registration with the medical council. This in turn paves a golden pathway to the most undeserving candidate, while the passionate and dedicated pursuant is left stranded.
Even if we turn a blind eye to the existence of corruption within the industry, failure to learn from past mistakes and lack of communication within ranks is another major area of concern.
Duty in the medical profession can be broadly classified into two:
Doctor’s duty to attend to a patient.
It amounts to medical negligence if a doctor arbitrarily refuses to attend to a patient, as a result of which the patient suffers injury or death.
- Doctor’s duty of care
When a medical practitioner attends to his patient, he owes him the following duties of care:
- A duty of care in deciding whether to undertake the case;
- A duty of care in deciding what treatment to give; and
- A duty of care in the administration of the treatment.
Failure to abide with any of the above duties equips the patient with a right of action for negligence. However, no right to action arises if a doctor, in good faith, chooses one course of treatment over another and it results in an injury to the patient. A patient cannot claim negligence on part of the doctor simply because he approached a given medical difficulty in a divergent manner.
MEDICAL NEGLIGENCE AND COVID-19
Corona virus has taken its toll on humanity as a whole. But the fiercest wrath of the pandemic has been on the medical community. As the number of people affected by the virus is skyrocketing with each passing day, so is the workload for the doctors.
The question which arises here is this; should medical professionals be granted immunity, given the extraordinary global scenario?
To answer this question, we need to dig a bit deeper into the types of medical professionals involved in the treatment of the COVID-19 patients. Apart from the people working in their usual environment, i.e., emergency care workers, anesthetists and critical care specialists, there is a whole bunch of other professionals from across the medical fraternity. In times of crisis like these, surviving is prioritized to specialization. Hence, retired healthcare workers and final year medical students are being charted in for service, which they willingly provide. A massive number of doctors are also being redeployed in unfamiliar environment and specialties. This leads us to another area of concern; which fraction of the healthcare workers qualify for immunity? On the one hand, it is argued that only the ‘extras’ should be granted immunity because of the unfamiliar environment they have to work in. If this stand is adopted, it is not fair for the ‘usual’ health workers who put in extra hours and carry heavy workloads on their shoulders.
It is logical that immunity be granted to such cases where delays in treatment and investigation occurred due to the pandemic, even if it resulted in any kind of harm to the claimant. If immunity is granted to only certain sections of medical staff but not others, there is a real risk that it will demoralize the workforce that was stretched even before the outbreak of Covid-19.
There is a financial angle to this debate too. Usually, medical negligence claims are charged against the institution or hospital the practitioner represents. Post COVID-19, if every medical negligence claim is entertained, massive financial resources which can otherwise be put into R&D will be directed elsewhere.
Even if immunity is granted for a particular time frame, say from March till the pandemic subsides, immunity should only be from medical negligence claims but not from regulatory investigations.
Medicine is one of the most demanding professions there is. It is one of the most evolving fields too. The technological advancements and findings in the field are rapid, and to keep up with it on a daily basis is nothing short of a herculean task. There is a constant need to learn, as well as, unlearn. Negligence of such advancements will prove to be debacle to the global healthcare system. There is a need to observe utmost care and caution not only while providing the service, but also while digesting the ‘constant change’.
The World Health Organization has declared that more than 138 million people are harmed every year by doctor’s negligence. If the scenario stays put, the common man will lose whatever little belief he has in the current health system. To add to this, the COVID-19 pandemic is stretching the medical workforce in a manner like never before.
The World Health Organization is doing tremendous work to bring down instances of medical negligence worldwide. For starters, World Patients Day is observed on the 17th of September every year, to increase awareness and caution regarding patient rights among the public in general, and doctors in particular. To completely eliminate medical negligence will be close to impossible, but what would go a great way in bringing it down is developing international medical law.
 Jacob Mathew v. State of Punjab, A.I.R 2005 S.C.C. 3180.
 Bourhill v. Young, (1943) A.C. 92.
 Chapman v. Hoarse, (1961) 108 C.L.R. 112.
 Morgan v. Sim, (1857) 11 Moo P.C. 307.
 Sadaram Kanhaiya v. Sobharam, A.I.R. 1962 M.P. 23.
 Jacob Mathew v. State of Punjab, A.I.R 2005 S.C. 3180.
 Dr. L.B. Joshi v. Dr. T.B. Godbole, A.I.R. 1989 P. & H. 183.